Deportation to a Third Country: Notice and Legal Rights

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A third-country removal sends a person being deported somewhere other than the country their removal order names. It can happen to people with final removal orders, even those protected from return to one country because of persecution or torture there: that protection does not prevent removal to a different country.

The dispute is over whether people get meaningful notice and a chance to raise fear of the new destination before departure. The guidance requires no notice or wait when the receiving country has promised not to persecute or torture people sent there and the State Department finds the promise credible.

A federal district court ruled that a class of people facing these removals is entitled to meaningful notice and a chance to raise fear of the new country, but the Supreme Court put that ruling on hold on September 29, 2026, while it hears the case. The stayed judgment no longer prevents DHS from using that guidance while Supreme Court review continues.

Why a new destination raises a new question

The Department of Homeland Security (DHS) describes third-country removal as sending someone to a country other than the destination named in the removal order. Federal regulations allow removal to another country even when removal to the original country has been withheld or deferred, forms of protection explained below.

The statute lists countries a person may be removed to and then permits another country whose government will accept the person if removal to each listed country is impracticable, inadvisable, or impossible. A person therefore need not have lived in the destination country, but the statute sets conditions on using that fallback.

A claim that someone would be persecuted in one country does not, by itself, answer whether that person would be tortured in a different one. Notice is how a person learns which country is proposed; how much of it the law requires is the question now before the courts.

What the notice policy provides, and what is contested

In its February 25, 2026 judgment in D.V.D. v. Department of Homeland Security, the federal district court in Massachusetts declared that class members have a right to meaningful notice and an opportunity to raise a country-specific claim before third-country removal. The court also declared unlawful and set aside the policy being challenged: DHS’s March 30, 2025 guidance on third-country removals and a July 9, 2025 memorandum from Immigration and Customs Enforcement (ICE).

On September 29, 2026, the Supreme Court stayed that order and judgment and agreed to review the case. The stay suspends the lower judgment’s effect while the Supreme Court considers the dispute; it does not settle the final legality of the policy.

The class covers people with final removal orders whom DHS deported or will deport on or after February 18, 2025. The order must have come from ordinary immigration-court proceedings, from reinstatement of an earlier order after an illegal reentry, or from specified administrative removal proceedings, including withholding-only proceedings, in which a judge considers only a request for withholding of removal. A person is in the class only when the destination was not previously designated as the country of removal or an alternative and was not identified in writing in the earlier proceedings as a country to which the person would be removed.

Administrative removal under federal law allows a removal order for a person convicted of an aggravated felony who was not lawfully admitted for permanent residence or held permanent residence on a conditional basis when proceedings began.

The procedure described next is the one in the government’s guidance, not the rights declared in the stayed judgment. The guidance permits removal with no further procedures, meaning without the notice, waiting period and fear screening described below, when the receiving country has supplied diplomatic assurances against persecution or torture and the State Department considers those assurances credible. Diplomatic assurances are a foreign government’s promises about treatment after transfer. Whether those promises can replace an individual opportunity to raise fear is part of the dispute.

When that assurances exception does not apply, an ICE officer serves a Notice of Removal identifying the intended country and reads it in a language the person understands. ICE generally waits at least 24 hours after serving the notice before removing the person.

In exigent circumstances, meaning an emergency, the policy permits removal six or more hours after service if the person has reasonable means and an opportunity to speak with an attorney before removal. Removal in less than 24 hours requires approval from the DHS general counsel or, if that official is unavailable, the principal legal advisor.

Under the policy, officers will not ask whether the person is afraid of being removed to that country. A person who fears the destination has to say so without being asked: if no fear is stated within 24 hours, ICE may proceed with the removal. If the person affirmatively expresses fear, ICE refers the case to U.S. Citizenship and Immigration Services (USCIS), which generally screens the claim within 24 hours of referral. The screening asks whether persecution on a protected ground or torture in the removal country is more likely than not.

Under the challenged guidance, a negative USCIS screening permits removal to that country. A positive screening leads to immigration-court consideration, initially or through reopening as appropriate, or ICE may choose a different destination. Expressing fear therefore does not itself guarantee a full immigration-court hearing.

The legal challenge concerns whether that process gives a meaningful chance to invoke protections that already exist in law.

The two protections against danger

Statutory withholding bars removal to a country where a person’s life or freedom would be threatened because of race, religion, nationality, membership in a particular social group, or political opinion, subject to statutory exclusions. For an applicant who has not established past persecution, the regulation requires a showing that future persecution on one of those grounds is more likely than not. The fact-finder evaluates whether the applicant has met the burden of proof and makes credibility determinations.

Withholding exclusions include participation in persecution, a particularly serious criminal conviction with danger to the community, serious reasons to believe a serious nonpolitical crime was committed abroad before arrival, and reasonable grounds to believe the person poses a security danger. These exclusions are why a finding of danger does not always produce statutory withholding.

Protection under the Convention Against Torture (CAT) requires a showing that torture in the proposed removal country is more likely than not. The regulation defines torture as severe physical or mental pain or suffering inflicted intentionally for purposes such as punishment, coercion, discrimination or obtaining a confession. It must be inflicted by a public official or another person acting in an official capacity, or at that person’s instigation or with that person’s consent or acquiescence. Acquiescence requires that the official knew of the torture beforehand, through actual knowledge or willful blindness, and then failed to meet a legal duty to intervene to prevent it. Willful blindness means awareness of a high probability of torture followed by deliberate avoidance of the truth; mere negligence does not suffice.

The immigration judge must consider all relevant evidence, including past torture, possible relocation within the country, human-rights violations, and other country conditions. Credible testimony may be sufficient without corroboration.

When a person qualifies for CAT protection but is barred from withholding, the regulation requires deferral of removal to the country where torture is likely. Deferral of removal does not confer lawful or permanent immigration status and does not necessarily result in release from detention. Deferral covers only that country: the regulation says the person may be removed at any time to another country where torture is not likely.

Under the challenged guidance, a person facing a third-country removal must make the same more-likely-than-not showing at the USCIS screening, before any full hearing, which the plaintiffs in D.V.D. contest.

Challenging removal after the order is final

A motion to reopen goes to the immigration court or the Board of Immigration Appeals, depending on which has jurisdiction. It asks for consideration of new facts supported by affidavits or other evidence; a motion seeking relief must include the application and supporting documents. The evidence must be material and must not have been available or discoverable at the previous hearing.

Ordinarily, one motion to reopen removal proceedings may be filed within 90 days of the final administrative decision, subject to exceptions. Those time and number limits do not apply to a motion seeking asylum or withholding because circumstances have changed in the person’s country of nationality or the country to which removal was ordered, if the evidence is material, was previously unavailable and could not have been discovered or presented. That exception concerns changed conditions supported by evidence; a new destination is not, simply by being new, proof that every reopening requirement has been met.

A motion to reopen generally does not stop execution of the removal decision unless the Board, an immigration judge, or an authorized DHS officer specifically grants a stay.

A different restriction applies when an earlier removal order is reinstated after illegal reentry: the statute says the reinstated order is not subject to reopening or review. The ordinary reopening route therefore does not fit every person with a final order.

Separate reasonable-fear regulations apply during reinstatement or certain administrative removal proceedings when a person expresses fear of returning to the removal country. In that separate process, USCIS screens for a reasonable possibility of persecution on a protected ground or of torture. When the officer considers the mandatory bars to withholding in a persecution screening, the person must show a reasonable possibility that no bar applies. A positive determination leads to immigration-judge consideration of withholding-only protection. The person may request immigration-judge review of a negative determination. The third-country guidance described earlier uses a different test: whether persecution or torture is more likely than not.

The March guidance covers third-country removals of people with final orders, including reinstated orders. Its screening procedures apply only when the person has no ongoing proceeding in which to raise a withholding or CAT claim; for someone with such a proceeding, DHS says it will follow existing procedures.

The district court criticized the guidance for requiring a full merits showing before a hearing and considered a reasonable-fear threshold more appropriate for a preliminary screening.

The ordinary deadline for a petition asking a federal court of appeals to review a final removal order is 30 days after that order. It is filed in the judicial circuit where the immigration judge completed the proceedings. Serving the petition does not itself stay removal unless the court orders otherwise.

Choosing the route, meeting its deadline and asking to pause removal are separate steps. A late-announced destination does not make it safe to assume that the ordinary deadlines restart.

In removal proceedings before an immigration judge and in administrative appeals, a person may be represented by authorized counsel of their choosing, but at no expense to the government: the government does not pay for the lawyer. The Executive Office for Immigration Review (EOIR) maintains a List of Pro Bono Legal Service Providers for people in its proceedings. Pro bono means free legal service. Contact providers on the list to ask about representation for the particular case.

What a court pause does, and does not, decide

In its 2009 decision in Nken v. Holder, the Supreme Court explained that a stay temporarily halts a proceeding or removes an order’s enforceability, while an injunction directs someone to act or refrain from acting. Pausing a person’s removal order holds back deportation; pausing a judgment that restricts government action holds back that restriction instead.

The traditional stay test considers likelihood of success on the merits, irreparable injury without a stay, injury to other parties, and the public interest. A court considers the merits at this stage to decide whether a pause is warranted, rather than issuing its final answer to every claim.

The September 29 order paused the district court’s judgment, which restricted the government; it did not pause any person’s removal. The Court directed briefing for argument in its December 2026 session and said the stay would end when its judgment is sent down.

The dispute the Supreme Court will resolve

The plaintiffs argue that due process protects a right to notice and an opportunity to be heard on withholding and CAT claims even for people with final deportation orders. They contend that six to 24 hours to raise fear of an unfamiliar country, followed by a rapid merits-level showing, does not provide a meaningful opportunity.

Their position is that the government can continue third-country removals while giving timely notice and a lawful opportunity to raise fear, rather than dispensing with those procedures. They also challenge the reliance on nonindividualized diplomatic assurances to allow removal without notice or process.

The government responds that class members already have final orders and have had opportunities to raise protective claims in earlier proceedings or through reopening when new fears arise. It argues that credible foreign assurances can make another individualized determination unnecessary, and that its notice and screening procedures otherwise satisfy due process.

The government also argues that the district court’s supervision and delays threaten foreign agreements and diplomatic negotiations needed to carry out third-country removals. It contends that these claims belong in the statutory petition-for-review process. It also argues that a statute bars lower courts from issuing classwide orders that restrain third-country removals, and that the district court could not avoid that bar by labeling its order declarations and a vacatur. Vacatur means setting aside the challenged policy.

The Supreme Court has agreed to decide whether the district court had jurisdiction, whether it had authority to issue classwide declarations and set aside the policy, and whether the guidance is unlawful under the removal statute, due process, or the torture-protection framework. The Court’s decision can shape how much notice and opportunity a person gets.